News

September 9, 2019

The Protein of the Future is Almost Here. But What Are We Allowed to Call It?

Meat remains a staple of the American diet. But, despite the joys of a crispy piece of bacon, traditional meat production methods have several drawbacks. Raising cattle or poultry is resource-intensive. It creates a lot of, shall we say, unpleasant waste. Consumers are increasingly concerned about the treatment and welfare of animals, and slaughterhouse work is notoriously dangerous and traumatic. Yet, dramatic increases in meat production are necessary to keep pace with population growth. So, unless billions of omnivores are willing to go meatless, what’s the answer?

Enter the food scientists, who now have the ability to harvest muscle cells from a living animal, place them in a nutrient-rich growth medium, and grow them into edible meat tissue that, by all accounts, when cooked is as tasty as the original cow, chicken, or fish. The technology hasn’t yet been scaled up to mass production, so this new “cultured” or “cell-based” meat hasn’t quite hit your local supermarket. But rest assured, it’s coming, and traditional meat and poultry producers have taken notice.

I. The Rush to Pass Cell-Based Meat Labeling Laws in the States

Ranchers and industry groups have responded to the budding industry with an aggressive effort to ban producers from calling their product “meat,” “beef,” “chicken,” and the like. Between August 2018 and the time of this writing, at least nine states—Arkansas, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming—have passed legislation expressly barring cell-based meat producers from labeling, advertising, and selling their cell-based meat as “meat.” Additionally, similar legislation is pending in states across the country.

These laws are ostensibly intended to prevent consumer confusion. In a February 9, 2018 Petition to the U.S. Department of Agriculture (“USDA”), the U.S. Cattlemen’s Association argued that “[t]he ‘beef’ and ‘meat’ labels should inform consumers that the products are derived from animals harvested in the traditional manner, as opposed to … artificially grown in laboratories.” See https://www.uscattlemen.org/Templates/pdfs_USCA/2018-PDFs/2-9-18USCA-AMS-Petition-re-definition-of-beef-and-meat.pdf. However, critics argue that the real intent behind these laws is to protect an entrenched industry and to force cell-based meat producers to use confusing or pejorative terms for their products. In the long run, these laws are likely destined to fail.

II. Ham-Handed Laws Face an Uphill Battle

The various laws and bills winding their way through statehouses suffer from a variety of ambiguities and definitional problems. Several of the laws, for example, purport to bar producers from calling their product meat unless it is “derived from harvested livestock [or] poultry.” See Wyoming Senate Bill SF0068 (2019); see also Missouri Senate Bill 977 (2018); Oklahoma Senate Bill 392 (2019). But, cell-based meat is, in fact, “derived from” livestock or poultry. It’s derived from the same animals, just in a far less invasive way: with a biopsy instead of a butcher’s knife.

More importantly, though, these laws would create a patchwork of inconsistent labeling requirements that would be nearly impossible to comply with. Compare Wyoming’s new law and Colorado’s proposed bill, for instance. Wyoming purports to require cell-based meats to be labeled as “containing cell cultured product”—whatever that means. See Wyoming Act 501 (2019). Meanwhile, Colorado’s House Bill 19-1102 would force producers to use the terms “lab-grown” or “artificially cultured.” However, if every state mandates the exclusive use of its own preferred term, and bans other terms, then producers will have to market the same product under dozens of different names and descriptions, while also ensuring that products destined for one state don’t end up in another state with inconsistent labeling laws.

Regulatory inconsistency isn’t just a practical concern. It’s also a legal one. Under the Supremacy Clause of the U.S. Constitution, state laws that conflict with or otherwise interfere with congressional objectives in passing a federal law may be deemed “preempted” (or superceded) by that federal law. At the federal level, meat and poultry labeling is tightly regulated, and meat and poultry labels are subject to review and pre-approval by USDA’s Food Safety and Inspection Service (“FSIS”). See 9 C.F.R. § 412.1. Meat and poultry products that do not bear the federally approved label may not be distributed in interstate commerce. Id. Moreover, in March 2019, USDA and the Food and Drug Administration announced an agreement to jointly regulate the production and marketing of cell-based meat. The agencies agreed that USDA will “[r]equire that the labeling of [cell-based meat and poultry] be preapproved and then verified through inspection,” among other things. USDA’s tight rein on meat labeling, coupled with its announced intention to subject cell-based meat labels to preapproval, signals that these state laws will face tough court challenges on grounds of federal preemption.

These laws may also run afoul of the First Amendment. Commercial speech such as the text on a product label is subject to more governmental regulation than non-commercial speech. But even then, producers have “a constitutional right to give the public accurate information” about their products. Rubin v. Coors Brewing Co., 514 U.S. 476, 496-97 (1995) (Stevens, J., concurring). In order to restrict otherwise “truthful, unadorned, informative speech,” a state must have a “sufficient interest” in doing so. Id. It’s not clear that any of these labeling restrictions are justified by legally sufficient interests, especially given how they would confuse consumers and force producers to use vague, clinical-sounding descriptors like “cell cultured product” instead of simple and accurate terms (i.e., cell-based beef, cell-based pork, etc.).

III. A Promising Solution

Thankfully, there is cause for optimism. While some traditional meat producers have taken a hard line against cell-based meat, the industry is splintered. Indeed, many conglomerates like Tyson and Cargill are embracing the fledgling industry instead of trying to quash it. Notably, in August 2018, Memphis Meats (a leading cell-based meat developer) and the North American Meat Institute (“NAMI”) (“the oldest and largest trade association representing U.S. packers and processors of beef, pork, lamb, veal and turkey”) submitted a joint letter in response to USDA’s/FDA’s request for comments on the future and oversight of the technology. In it, they noted that “in meeting the world’s protein needs … large-scale production methods, small-scale farming, and cell-based meat and poultry methods will all play a role.” See Joint Letter from Memphis Meats and NAMI (August 23, 2018) (available at https://www.regulations.gov/document?D=FSIS-2018-0036-0316). The parties boldly declared that “[c]ell-based meat products are meat,” representing “the latest in a long history of innovation in American agriculture,” and they stated their shared desire to use the terms “cell-based meat” and “cell-based poultry” to describe such products. Id. (emphasis added). Collectively, they pledged to “support a fair and competitive marketplace that lets consumers decide what food products make sense for them and their families.” Id.

It remains to be seen whether NAMI and Memphis Meats can steer lawmakers in the right direction. But their compromise is a fantastic example of how everyone can benefit when established players and newcomers to an industry choose collaboration over confrontation. It would allow cell-based meat producers to accurately identify their products as meat, while also protecting traditional meat producers and promoting transparency by differentiating cell-based from traditional meat products.

So, kudos to NAMI and Memphis Meats—for agreeing to “meat” in the middle.